Excerpt:family - divorce - hindu marriage act, 1955 - application for divorce filed within 3 years of marriage between petitioner and respondent - limitation of 3 years is not absolute - court may allow petition to be presented before 3 years have passed on ground of exceptional hardship suffered by petitioner or exceptional depravity on part of defendants - application for divorce valid.
- - --the petitioner, srimathi susheela, is the only daughter of a well-to-do vanniakula kshatriya by name sri p. meganatha nayagar, is the only son of another well-to-do vanniyakula kshatriya, sri bhoopathi nayagar residing at mohana vilas, no. on the other hand, the case for this respondent is that there was a love affair and not a regular marriage between himself and chandramathi who has borne him a son..........whether or not to grant leave, the court would act on prima facie evidence contained in the leave application and respondent's affidavit if filed. simpson v. simpson, (1954) 2 ah er 546 (a), winter v. winter, 1944 p 72 (b). such decision will not be reviewed on appeal if there was material in support of it.11. section 2(1) of the english act and section 14 of the indian act does not define 'exceptional hardship' or 'exceptional depravity'.the ordinary lexicon meanings of the three words, 'exceptional', 'hardship' and 'depravity' may be borne in mind.in regard to the term 'exceptional' funk & wag-nail's standard dictionary defines it as:'of a nature to be excepted; constituting or relating to an exception; unusual; uncommon.' webster's international dictionary of english.....

Judgment:

Ramaswami, J.

1. This is an appeal preferred against the order made by the learned Principal City Civil Judge of Madras in C. M. P. No. 655 of 1955 in O. P. No. 192 of 1935.

2. The facts are:-- The petitioner, Srimathi Susheela, is the only daughter of a well-to-do Vanniakula Kshatriya by name Sri P.M. Manthiappa Nayagar, residing at No. 19, Egmore High Road, Madras. The respondent, Sri V.B. Meganatha Nayagar, is the only son of another well-to-do Vanniyakula Kshatriya, Sri Bhoopathi Nayagar residing at Mohana Vilas, No. 5, Konnur High Road, Madras. There is no dispute that a marriage was arranged and took place between the petitioner and the respondent on the forenoon of 7-7-1955,

3. It is the case for the petitioner that oft the afternoon of 7-7-1955 the bride's party came to know that this respondent has gone through a form of marriage with a Harijan girl by name Chandramathi and that a son was born to this respondent by that Chandramathi. This petitioner's case is that on coming to know of this shocking fact fraudulently kept out of her knowledge herself and her relatives came away without the marriage being consummated. On the other hand, the case for this respondent is that there was a love affair and not a regular marriage between himself and Chandramathi who has borne him a son and that this fact was taken to the notice of the petitioner's father before marriage and that notwithstanding that, the marriage took place by consent of parties and that this marriage was consummated before the petitioner and her party left his house at midnight of the marriage day.

4. The relevant documents which have to be taken into consideration are three in number. Ex. B-1, runs as follows:--

''This memorandum of agreement, executed at Madras, this 22nd day of December 1952, between Meganathan, son of M. Bhoopathy Naicker, of the age of 25 years, and residing at No. 74, Sachidanandham Pillai St., Perambur Barracks, Madras, and Chandramathi, daughter of Raghavalu Naidu, Harijan of the age of 20 years and residing at No. 7, Mangalapuram, Perambur Barracks, Madras, witnesseth as follows:--

Whereas we have been in close intimacy for the past two months, resulting in the happy development of conjugal love and affection between us rendering it possible for us to be husband and wife, loving each other to the last. Hence we hereby solemnly declare and state that the children born to us will be legitimate children, having the legal right to inherit all our movable and immovable properties belonging to both of us, in witness whereof, the parties hereto have set their hands on the day and year first above written in the Sub-Registrar Office, Madras.........'

5. Ex. B-2 is a so-called deed of divorce between Chandramathi and the respondent, which runs as follows:--

'.......Deed of Divorce made this 12th day of July 1955, between (1) Sri M.M. Meganathan, son of M. Bhoopathi, Vanniar by caste, aged 28 years, residing at No. 5, Konnur High Road, Ramalingapuram, Madras-12 and (2) Chandramathi, daughter of Raghavalu, Harijan by caste, aged 24 years, residing along with No. 1 on the above-mentioned address, witnesseth:

Whereas we lived harmoniously as husband and wife for the past three years, loving each other as per the agreement of marriage effected between us and registered on the 23rd December 1952, in the Office of the Sub-Registrar of Madras Chingleput;

Now owing to some differences that occurred between us, we do not like to be as husband and wife, and also believe that we could not have a happy and peaceful life. Hence we both desire to effect & deed of divorce between us.

Now by this deed of divorce we sever each other from our marriage tie and we mutually agree that each of us has no claim over the other either in property or in person.

In witness whereof we have hereunto set our hands to this deed of divorce, voluntarily and of our free will.....'

6. Ex. B-3 is an extract from the Birth Register kept by the Madras Corporation of Madras which has been filed to show that a male child by name Mohanathan was born to Bhoopathi Nayagar on 19-11-1935. The respondent has described himself in Ex. B-l as aged 25 and in Ex. B-2 as aged 28. Therefore, whether Ex. B-3 can be correlated to this respondent Meganathan, the child Mohanathan mentioned therein, awaits further proof.

7. This application for divorce, it will be noticed has been filed within three years of the marriage between the petitioner, and the respondent and now under Section 14 of the Hindu Marriage Act, 1955, which corresponds to sections of the English Matrimonial Causes Act, 1950, states that no petition for divorce can be presented unless at the date of the presentation of the petition three years have passed since the date of the marriage. This limitation of time has been given so that there may be a fair trial of the matrimonial alliance. This three years' limitation is not absolute, and the provision lays down that the Court may allow a petition to be presented before three years have passed, on the ground that the case is one of 'exceptional hardship' suffered by the petitioner, or of 'exceptional depravity' on the part of the defendants, In such special circumstances, the Court shall have regard to the interests of any children of the marriage and to the question, whether there is reasonable probability of the parties becoming reconciled before the three years' expiry. Therefore, C. M. P. No. 655 of 1955 was filed before the learned Principal City Civil Judge for grant of leave.

8. This application for grant of leave is based upon the twin grounds of exceptional hardship to this petitioner, belonging to Vanniyakula Kshatriya and coming from a respectable family of position and influence, on whom a huge fraud had been practised and who had left the respondent's house on the afternoon of the day of the marriage and before even it was consummated and the marriage tie was not severed forthwith and especially when there was not the slightest chance of any reconciliation owing to the alliance of this respondent with a Harijan girl and having a son by her and the exceptional depravity on the part of the respondent as disclosed by the facts set out in the verified petition and the counters.

9. I have just now mentioned before that Section 14 of the Hindu Marriage Act, 1955, corresponds to the English Matrimonial Causes Act, 1950, Section 2(1) which provides that no petition for dissolution of marriage may be presented to the High Court without leave unless three years have elapsed from the date of the marriage. It should be noted that this qualifying period does not apply to petitions for dissolution presented under the Matrimonial Causes (War Marriages) Act, 1944. The Court can grant leave for a petitioner to present a petition before the expiration of three years on the following grounds, viz., (a) exceptional hardship suffered by the petitioner; and/or (b) exceptional depravity on the part of the respondent. In considering any application for leave to present a petition within three years, the Court will have regard to the interests of any children of the marriage and whether there is any reasonable possibility of a reconciliation between the parties before the expiration of the three years.

10. The procedure for an application for leave to present a petition for divorce before three years have passed since the date of the marriage is set but in Phillips Practice of the Divorce Division (Fourth Edn.) 1951 (Published by The Solicitors' Law Stationery Society Limited) as follows:--

It is made by originating summons in accordance with Form I of Appendix III to the Matrimonial Causes Rules, 1950.

An affidavit in support of the summons must be filed by the Applicant. This affidavit must state--

1. the grounds on which the application as made giving particulars of the hardship and/or depravity alleged;

2. whether there has been any previous application for leave to present a petition within three years;

3. whether there are living any children of the marriage and, if so, the names and dates of birth of ages of such children and where and with whom they are residing; and

4. what attempts at reconciliation, if any, have been made, and any circumstances which might assist the Court to determine whether there is a reasonable probability of a reconciliation between the parties.

The affidavit must exhibit a copy of the intended petition. Unless otherwise directed the summons should be served either personally or by registered post on the respondent at least five clear days before the return date. The respondent need not enter appearance to the summons and need not file any answer in reply and may be heard without entering appearance. If necessary an adjournment may be obtained. If the respondent does hot 'attend before the Judge in chambers on the adjourned date, the Judge can make an order of proof of service of the originating summons. Applications for leave to present a petition being by originating summons before a Judge in Chamber, and not reported, few precedents can be cited. The first decree of this kind after leave has been given to a petition was in Harly v. Harly Times July 30, 1938 (Lately on Divorce 14th Edn., p. 70).

In deciding whether or not to grant leave, the Court would act on prima facie evidence contained in the leave application and respondent's affidavit if filed. Simpson v. Simpson, (1954) 2 AH ER 546 (A), Winter v. Winter, 1944 P 72 (B). Such decision will not be reviewed on appeal if there was material in support of it.

11. Section 2(1) of the English Act and Section 14 of the Indian Act does not define 'exceptional hardship' or 'exceptional depravity'.

The ordinary lexicon meanings of the three words, 'exceptional', 'hardship' and 'depravity' may be borne in mind.

In regard to the term 'exceptional' Funk & Wag-nail's Standard Dictionary defines it as:

'of a nature to be excepted; constituting or relating to an exception; unusual; uncommon.' Webster's International Dictionary of English Language;

'Exceptional which is itself an exception and so is out of the Ordinary, that is, exceptionable to which exception may be taken and which is therefore objectionable; as an exceptional opportunity, or exceptional conduct.' Murray's New English Dictionary:

'Of the nature or forming an exception; out of the ordinary course, unusual, special.' Stroud's Judicial Dictionary (3rd Edition) 1953:

'The words 'exceptional hardship' in relation topetitions for divorce indicate that the petitioner hasSuffered hardship greater than ordinarily associatedwith those cases in which petitioners successfully establish their claim for divorces on a ground of cruelly(Martin v. Martin, (1941) NI 1 at p. 14) (C); refusal to permit a sexual intercourse unless a contraceptive was used did not come within the phrase (Fisher v. Fisher, (1948) P 263 (D); see also Bowman v. Bowman, (1949) P 353 (E).)'

. The word 'hardship' is defined in Funk & Wag-nail as 'unjust; harsh or oppressive treatment; injustice; as this law works hardship to many.' Webster defines the term as 'that which is hard to bear, as privation, injury, etc.' Murray defines as 'a condition which presses unusually hard upon one who has to endure it; an infliction of severity or suffering.'

The term 'depravity' is described in Funk & Wagnall as 'the state of being depraved or corrupt especially, moral degeneracy, wickedness; a wicked act of habit.' Webster defined it as 'crookedness; perverseness; state of being depraved, corruption, wickedness.' Murray defines as 'perversion of moral faculties; abandoned wickedness.'

12. This Section 14 provides restrictions presumably designed to prevent hasty recourse to legal proceedings before the parties have made a real effort to save their marriage from disaster.

13. It is grounded on public policy because as Lord Westbury said in Shaw v. Gould, (1888) 3 HL 55 at p. 83 (F), 'Marriage is the very foundation of civil society, and no part of the laws and institutions of a country can be of more vital importance to its subjects than those which regulate the manner and conditions of forming and if necessary of dissolving the marriage contract.'

17 American Jurisprudence, page (Section 12) 154 has the following to say:

'Marriage is a relation in which the public is deeply interested and is subject to proper regulation and control by the State or sovereignty in which it is assumed or exists. The public policy relating to marriage is to forster and protect it, to make it a permanent and public institution, to encourage the parties to live together and to prevent separation. This policy finds expression in probably every State in this country in legislative enactments designed to prevent the sundering of the marriage ties for slight or trivial causes, or by the agreement of the husband and wife, or in any except on full and satisfactory proof of such facts as legislature has declared to be cause for divorce. Such provisions find their justification only in this well-recognised interest of the state in the permanency of the marriage relation. The right to a divorce exists by legislative grant, only the marriage contract in this respect being regulated and controlled by the sovereign power, and Rot being, like ordinary contract, subject to dissolution by the mutual consent of the contracting parties, except for the causes sanctioned by law. As said by the Federal Supreme Court: 'Other contracts may be modified, restricted or enlarged or entirely released upon the consent of the parties. Not so with marriage. The relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress': Andrews v. Andrews, (1903) 188 US 14 (G); Maynnard v. Hall, (1888) 125 US 190: 31 Law Ed 654 (H). To cite 17 American Jurisprudence once again, at page 151 (Section 8):

'Divorce is not among the inalienable rights of man or the rights granted by Magna Carta, the Federal or State Constitution, or the common law; except at the will of, and subject to any restrictions imposed by the legislature, divorce has never been recognised as one of the guaranteed privileges of the citizen. A right conferred by statute to a divorce for misconduct on the part of one of the spouses seems to be a matter of mere grace and not a vested right which the legislature may not take away, As has been said, no married person is vested with a 'legal right' to a divorce, for divorces are allowed neither as a punishment of the offending, nor as a favour to the innocent party, but because the state believes its own prosperity will be promoted thereby'. (Lowe v. Lowe, 46 ALR 983 (1); Worthington v. District at LRA 1916; A 696 (J); . Allen v. Alien, 49 LRA 142 (K); Dennis v. Dennis, 34 LRA 449 (L); Grant v. Grant, 32 Am. Rep. 506 (M)).

14. That is why the English Court of Appeal has persistently refused to translate these terms into other languages. It has held that it is for the Judge who bears the application to say whether in the circumstances a prima facie case of exceptional hardship or depravity has been made out. In deciding this point, he is not expected to try a petition in advance. He merely has to decide whether the allegations made in the affidavits filed on the application are such that if proved, they would amount to exceptional hardship or depravity; (1944) P. 72 (B). Having found that there is a prima facie case, it is for him to say in the exercise of his discretion whether he will grant leave for the petition to be filed. It is immaterial that the evidence subsequently given at the hearing of the petition does not support the allegation of exceptional hardship or depravity, though if it appears that leave to file the petition was obtained by any misrepresentation or concealment of the nature of the case, the trial Judge may, if he pronounces a decree nisi, order that it shall not be made absolute until after the expiration of three years from the date of the marriage, or he may dismiss the petition without prejudice to any petition which' may be brought after the expiration of the three years (see proviso to Section 29). Nor will the appellate Court interfere with the District Judge's discretion unless he has proceeded on a wrong principle of law or failed to have regard to a material consideration or some gross injustice has occurred; Charlesby v. Charlesby, (1947) 176 LT 532 (N).

15. Nevertheless it is possible to indicate roughly the type of conduct which falls on one side of the line or the other,

The English Court of Appeal in Bowman v. Bowman, (1949) 2 All ER 127: (1949) P. 353 (E), gave some guidance in considering what could be treated as exceptional hardship or depravity by laying down the following general principles:

1. Adultery with one person is not exceptional depravity.

2. Adultery plus desertion by the husband in favour of another woman or plus cruelty to his wife constitutes exceptional hardship to the wife.

3. Apart from adultery coupled with another matrimonial offence the consequences of adultery may cause exceptional hardship, e.g., when a wife has a child by her adultery.

4. If a husband commits adultery within a few weeks of his marriage, or promiscuously, or with his wife's sister, or a servant in the home, that may be held to be exceptional depravity. See Fisher v. Fisher, (1948) 64 TLR 245 (D).

5. Cruelty coupled with aggravating circumstances, e.g., drunkenness, and neglect, may be exceptional hardship on the aggrieved spouse, or if coupled with perverted lust (1947) 176 LT 532 (N)) exceptional depravity by the proposed respondent.

6. Everything reasonable should be done towards a reconciliation. This was an application by a wife who had left her husband six weeks after the marriage and alleged adultery, cruelty and perversion. The Court of Appeal upheld the Judge's decision in granting leave.

'The really important consideration in all these cases is to see whether there is any chance of reconciliation. On this point it is most material to inquire what the applicant has already done to try to make the marriage a success or to become reconciled. Is the breakdown of the marriage due to any failing or maladjustment on the part of the spouse who applies to launch her petition within three years of the marriage? , Has the applicant consulted a probation officer or any one else specially qualified to help? If the Court is not satisfied that all which is reasonable has been done in this respect, it may well dismiss the application.' (Per Denning, L. J. in Bowman v. Bowman (Ibid) at p. 129 (E).

16. The standard English text-book writers do not throw any further light on the subject. Lately on Divorce, 14th Edition, at page 70, it is pointed out:

'.....each case must stand on its merits. It is submitted that where a man married a girl, immediately drove her on to the streets, and profited by her immoral earnings, the Court might regard this as a case of exceptional depravity,' (See Coleman v. Coleman, (1866) I P. & D. 81 (O); Sheldon v. Sheldon, (1937) 106 LJ P. 44(P))'. Rayden on Divorce, Fifth Edition, page 152, has the following to say:

'It is submitted that the proper test is whether the conduct of the respondent is of a character more depraved, not than that of normal persons, but than that in the normal run of cases which come before the Divorce Court; and whether the hardship suffered by the applicant is similarly greater than that suffered by the normal run of petitioners to the. Court (including those in cases of cruelty)'. Philips' Divorce Practice, Fourth Edition, at page 102 mentions:

'The operative word is 'exceptional' and the facts of each case must be considered with a view to determining whether or not there is any exceptional circumstance which would justify an application to the Court,'

Tolstoy's Divorce Law and Practice, Second Edition, page 21 states;

'There is no definition in the Act of exceptional hardship or exceptional depravity, but leave to present a petition before the expiration of the three years is sometimes given in such cases as where a young wife is treated cruelly and callously from the outset of her marriage, or where the respondent flagrantly disregards the marriage obligation by living in adultery and leaving the petitioner (whether husband or wife) with small children to look after.'

17. Bearing these principles in mind, if we examine the facts of this case, we find that there are no grounds to interfere with the discretion exercised by the Lower Court. It would not be proper for the appellate Court to discuss in detail, as the jurisdiction to review the discretion of a judge on an application for leave to present a petition for divorce is not as pointed out in Bowman v. Bowman (E) (supra), of an easy character and such discussion would be practically deciding the controversy in the main application. Therefore, I shall content myself with merely stating that the contents of the leave petition and the respondent's affidavit disclose prima facie sufficient material for the learned Principal City Civil Judge to have exercised his discretion in the manner in which he has exercised.

Whether Ex. B-1 constituting ex facie an agreement for permanent and exclusive concubinage and Ex. B-2 constituting prima facie a divorce by mutual consent not statutorily (e.g. Special Marriage Act XLIII of 54) or customarily permissible (Sankara Lingam v. Subban, ILR 17 Mad 479 (Q), Jina v. Jethi : (1941)43BOMLR651 ) could have been registered at all as being void and illegal and opposed to public policy will be separately taken up on the exercise of the revisional and supervisory jurisdiction of this High Court.

This appeal is dismissed. Costs of this appeal to abide by and be provided for in the ultimate order and decree in O. P.No. 192 of 1955.